Key Takeaway
Naber Electric allowed a two-week-late answer before a default order or judgment. Read the calendaring error and the limits of its merit-affidavit ruling.
This article is part of our ongoing defaults coverage, with 90 published articles analyzing defaults issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
In Naber Elec. v Triton Structural Concrete, Inc., decided April 12, 2018, the First Department allowed an answer served two weeks late. No default order or judgment had been entered. The court accepted a specific calendaring mistake as the excuse and did not require a detailed affidavit of merit at that stage.
Last reviewed: September 2026.
Historical note: Naber Electric (April 12, 2018) concerned a late answer before any default order or judgment. CPLR 3012(d) supplies that procedural route, distinct from post-judgment relief.
A calendaring mistake before judgment
Defense counsel mistakenly requested an extension to April 7 instead of May 7, even though the existing response deadline was April 17. The court accepted that explanation for the short delay and found no evidence of willfulness or prejudice. It affirmed denial of the plaintiffs’ default motion and compelled acceptance of the answer.
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
CPLR 3012(d) addresses extensions and acceptance of late pleadings upon a reasonable excuse. Naber applied that procedure before entry of a default order or judgment. It should not be read as eliminating the defense showing for an excusable-default motion under CPLR 5015(a)(1), or as describing every ground for vacating a judgment.
Jason’s 2018 comment compares departments and federal practice. Those comparisons go beyond Naber’s holding. Its result depended on the procedural stage and the short, explained delay; applicable notice and proof requirements still need separate attention.
Jason’s original comment
Jason’s April 2018 comment follows unchanged. Its departmental comparison, federal-rule discussion and ex parte strategy are historical commentary, not a current filing checklist.
The Court of Appeals should resolve this conflict. The other Departments hold that a meritorious defense is needed. The Second Circuit on construing Rule 55 after a clerks marking of default holds the same. Also, the way around this is to enter an ex-parte judgment on liability, which is something that downstate Courts frown upon unless it is a sum certain matter.
Connect to the Encyclopedia
Start with the default judgments and vacatur topic hub.
- Gantt: military affidavits and the accepted late answer
- Gecaj: insurance-broker error after repeated default notices
- IDS v Metro Health: nonreceipt and documentary defenses
- Farrell Forwarding: conference dismissal without prejudice
For review of a particular default, service issue or court order, contact the firm.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Default Judgments in New York Practice
Default judgments arise when a party fails to answer, appear, or respond within required time limits. Vacating a default under CPLR 5015 requires showing a reasonable excuse for the failure and a meritorious defense or cause of action. In no-fault practice, defaults occur frequently in arbitration and court proceedings, and the standards for granting and vacating defaults have generated substantial case law. These articles analyze default practice, restoration motions, and the circumstances under which courts excuse procedural failures.
90 published articles in Defaults
Keep Reading
More Defaults Analysis
Civil Court shenanigans
Unique Physical Rehab vacated a preclusion order entered during an appellate stay. The opinion distinguished inherent authority from jurisdictional relief.
Apr 24, 2021
Interest of justice vacatur
New York court grants vacatur of default judgment in no-fault insurance case where claim was barred by res judicata, demonstrating interests of justice standard.
Mar 17, 2021
Failure to enter a default excused
Linden Equipment excused delayed default proceedings on its particular record. Compare abandonment rulings and Jason's original 2015 commentary.
Oct 30, 2015
Movant bears burden to show that application to vacate default under 5015(a)(1) was timely made
New York court confirms that parties seeking to vacate default orders under CPLR 5015(a)(1) must prove their motion was filed within the one-year deadline.
Jun 20, 2013
Generalized Averment of Law Office Failure is Sufficient to Open a Default: A Comprehensive Analysis
Lamar allowed the City's late answer before a default order existed. Its 2009 ruling is not blanket permission to reopen defaults on a general excuse.
Dec 4, 2009
Where was the reasonable excuse?
Two NY court cases examine reasonable excuse requirements for opening defaults in no-fault insurance litigation, highlighting challenges defendants face.
Jul 21, 2018Frequently Asked Questions
Common Questions About This Topic
3 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Do you need a meritorious defense to vacate a default in New York?
Naber concerned a late answer before entry of any default order or judgment. It did not require a detailed affidavit of merit at that stage. Excusable-default relief under CPLR 5015(a)(1) has a different showing; other statutory grounds must be analyzed separately.
What is an affidavit of merit?
An affidavit of merit is a sworn factual statement supporting a claim or defense. Naber found a detailed merit affidavit unnecessary for the particular pre-order relief sought; that does not excuse unsupported assertions in every kind of application.
What is the difference between vacating a default and opposing entry of a default judgment?
Opposing entry addresses an application before the default order or judgment exists. Vacatur asks the court to set aside an existing order or judgment. The requirements depend on the procedural ground, not simply the word default.
Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a defaults matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
